Link to original WordPerfect Document here


STATE OF INDIANA    )         BEFORE THE INDIANA DEPARTMENT                 )     SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,            )
                            )CAUSE NO. 1999-8417-H or H-13788                 v.            )
                            )
UNITED RAIL SERVICES, INC.            )
                            )
            Respondent.            )

AGREED ORDER

    The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into this agreement does not constitute an admission of any violation contained herein.

I. FINDINGS OF FACT

    1.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

    2.    Respondent is United Rail Services, Inc., (hereinafter referred to as "Respondent"), a company doing business at 1150 E. 145th Street, East Chicago, Indiana.

    3.    The Indiana Department of Environmental Management (hereinafter referred to as "IDEM") has jurisdiction over the parties and subject matter of this action.

            4.    Respondent submitted notification as a generator of hazardous waste to the U.S. EPA and was assigned the I.D. # IND 981 960 313.

    5.     Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

            Mr. Mike Pellin, President and Resident Agent,        
            United Rail Services, Inc.
            1150 E. 145th Street
            East Chicago, Indiana 46312
            
    6.    Based upon an investigation of the Respondent's facility on June 10, 1999, by Messrs. Rick Roudebush and Scott Ormsby of the Office of Land Quality (hereinafter referred to as "OLQ") of IDEM, IDEM contends that the following violations were in existence or observed at the time of the inspection:

                 a.    Pursuant to IC 13-30-2-1(1), no person shall discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment. Based on information gathered by IDEM, Respondent allowed a release of contaminants to the environment from three (3) 20- cubic yard roll-off containers.
            Since the time of the inspection it has been determined that the release was of nonhazardous vegetable oil. Respondent has washed the concrete storage pad and properly disposed of all rinsate.

        b.    Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words "Used Oil." Based on information gathered by IDEM, Respondent did not label its used oil storage tank with the words "Used Oil."

        c.    Pursuant to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR 264 and the permit requirements of 40 CFR 270. Based on information gathered by IDEM, Respondent stored containers of hazardous waste on-site for greater than 90 days without complying with 40 CFR 264 and 40 CFR 270.

        d.    Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility, must notify the Commissioner of its hazardous waste activity on the approved forms. Based on information gathered by IDEM, Respondent failed to notify the Complainant of storage activities.

        e.    Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct weekly inspections of container storage areas and
            containment areas. Based on information gathered by IDEM, Respondent failed to conduct weekly inspections of its container storage building.

        f.    Pursuant to 40 CFR 262.34(a)(4) referencing 265.54, a facility's contingency plan must be amended whenever applicable regulations are revised; the plan fails in an emergency; the facility changes its design, construction, or operation; or the list of emergency coordinators or emergency equipment changes. Based on information gathered by IDEM, Respondent failed to amend the contingency plan to reflect a change in the Emergency Coordinator position and failed to list location and physical capabilities of all emergency equipment on-site.

        g.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a)(2), the facility's hazardous waste management training program must include instruction which teaches facility personnel hazardous waste management procedures relevant to the positions they are employed. Based on information gathered by IDEM, Respondent did not provide job specific RCRA training on how to properly respond to a release of contaminants to the soil.

    7.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

                    
II. ORDER

    1.    This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the effective date.
    
    2.     In the future, Respondent shall ensure that all containers and tanks used to store used oil are properly labeled with the words "Used Oil" pursuant to 329 IAC 13- 4-3(d).

    3.    Upon the Effective Date of the Order, Respondent shall not operate as a storage facility without first having notified the commissioner of those activities and obtaining a permit.

    4.    Upon the Effective Date of the Order, Respondent shall conduct weekly inspections of container storage areas and containment areas pursuant to 40 CFR 265.174.

    5.    In the future, Respondent shall ensure that no hazardous waste is stored for greater than ninety (90) days pursuant to 40 CFR 262.34    


    6.    Within thirty (30) days of the Effective Date of the Order, Respondent shall update and revise its contingency plan to include the phone numbers of all persons qualified to act as emergency coordinator pursuant to 40 CFR 265.52(d) and the location and physical capabilities of all emergency equipment on-site pursuant to 40 CFR 265.52(e). Submit copies of the revised pages to IDEM for review.

    7.    Within thirty (30) days of the Effective Date of the Order, Respondent shall ensure that all employees are adequately trained in the proper response to potential or actual discharges of contaminants to the environment pursuant to 40 CFR 265.16(a)(2). Submit documentation of additional training to IDEM.

    8.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

        Richard R. Milton, Case Manager
        Office of Enforcement            
        Indiana Department of
        Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015
    
    9.    Respondent is assessed a civil penalty of $5,700 which will be paid in three (3) installments of $1,900 each. The first installment shall be due within thirty (30) days following the Effective Date of this Agreed Order. The second installment shall be due One Hundred and Eighty (180) days following receipt of the first installment. The third installment shall be due One Hundred and Eighty (180) days following receipt of the second installment. Said penalty amounts shall be due and payable to the Environmental Management Fund. Failure to comply with the payment schedule will result in the entire penalty amount coming due.
    
    10.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
        
            Violation                   Penalty
             Failure to comply                 
            with Orders 6 and 7            $1,000/day

    11.    Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of the stipulated penalty given above, the Complainant may seek any other remedies or
        sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4-1.

    12.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number and shall be mailed to:

             Cashier
            IDEM
             100 N. Senate Avenue
            P.O. Box 7060
            Indianapolis, Indiana 46207-7060
                                                
    13.    In the event that the first installment of the civil penalty, as required in paragraph 9, is not paid within thirty (30) days of the effective date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
            
    14.    This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

    15.    In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if the Agreed Order did not contain the invalid terms.

    16.    The Respondent shall provide a copy of this Agreed Order, if in force, to any         subsequent owners or successors before ownership rights are transferred.              Respondent shall by contract require that all contractors, firms, and other              persons acting for it comply with the terms of this Agreed Order.

    17.    This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondent.


TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:                  By:     
    Nancy L. Johnston, Chief        
    Hazardous Waste Section
    Office of Enforcement
Date:                  Date:    

LEGAL RECOMMENDATION:            COUNSEL FOR RESPONDENT:
Department of Environmental Management

By:                  By:     
    Aaron Schmoll
    Office of Legal Counsel
    
Date:                  Date:     

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS DAY OF , 199 .

                        FOR THE COMMISSIONER:

                        Signed 2/14/2000
                        
                        Felicia A. Robinson
                         Assistant Commissioner
                        Office of Enforcement
        

Converted by Andrew Scriven